Martin H. Smith Co. v. American Pharm. Co.

CourtNew York Court of Appeals
Writing for the CourtPER CURIAM.
Citation200 N.E. 779,270 N.Y. 184
Decision Date03 March 1936
PartiesMARTIN H. SMITH CO., v. AMERICAN PHARMACEUTICAL CO., Inc., et al.

270 N.Y. 184
200 N.E. 779

MARTIN H. SMITH CO.,
v.
AMERICAN PHARMACEUTICAL CO., Inc., et al.

Court of Appeals of New York.

March 3, 1936.


Action by the Martin H. Smith Company against the American Pharmaceutical Company, Inc., and others. From a judgment of the Appellate Division (244 App.Div. 702, 278 N.Y.S. 834) affirming a judgment of the Special Term dismissing the complaint, plaintiff appeals.

Reversed, and judgment directed for plaintiff.

[200 N.E. 780]


[270 N.Y. 185]Appeal from Supreme Court, Appellate Division, First department.

George Gordon Battle, Sylvester J. Liddy, Orson D. Munn, and John H. Glaccum, all of New York City, for appellant.

Louis D. Frohlich, Nathan Burkan, Herman Finkelstein, Albert T. Scharps, and Louis Barnett, all of New York City, for respondents.


[270 N.Y. 186]PER CURIAM.

In this action to enjoin defendants from using the word ‘Ergot-Apiol’ in advertising and selling their product, the following facts have been found:

During the year 1900 plaintiff obtained a trade-mark registration for its preparation under the name ‘Ergoapiol,’ and has since used that designation. The principal ingredients are ergot and apiol. Many other manufacturers prior to and subsequent to the year 1900 have sold preparations having the same principal ingredients under the names ‘Ergot-Apiol Compound,’ ‘Ergot & Apiol Com.,’ ‘Ergot and Apiol Comp.,’ ‘Apiol and Ergotin Compound,’ ‘Apiol and Ergotin,’ ‘Ergot and Apiol,’ ‘Ergot and Apiol Capsules,’ ‘Apiol and Ergot,’ and ‘Ergot-Apiol capsules.’ Since the year 1926 defendants have sold capsules containing ergot and apiol, and in the year 1927 placed upon the market a square cardboard box containing twenty-four capsules and sold its preparation under the designation ‘Ergot and Apiol Compound.’ In June, 1932, defendants changed the name of their product and the method of packing. They changed the name from ‘Ergot and Apiol Compound’ to ‘Ergot-Apiol,’ and the receptacle, upon which the new name is printed, from a square cardboard box to a yellow tin box incased in cellophane. In addition to these findings, the undisputed proof is that the contents of defendants' package were reduced from twenty-four capsules to twenty capsules, the new tin box, [270 N.Y. 187]instead of colored cream and brown, was very similar in color to plaintiff's yellow tin box, and, although differing slightly in detail, was substantially the same size and shape. Defendants changed the manner of packing from a criss-cross inlay to a...

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5 practice notes
  • Swanson Mfg. Co. v. Feinberg-Henry Mfg. Co.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 12, 1943
    ...itself, that is important. Martin, J.'s dissent in Smith Co. v. American Pharmaceutical Co., 244 App. Div. 702, 278 N.Y.S. 834, reversed 270 N. Y. 184, 200 N.E. Where a defendant is shown to have pushed the sale of its product at the expense of the plaintiff through unfair practices, which ......
  • Precision Apparatus Co. v. Precision Meter Co.
    • United States
    • United States State Supreme Court (New York)
    • December 21, 1956
    ...by respondent of that name. Nims, Unfair Competition and Trade Marks (4th Ed.), Vol. 1, sec. 38; Smith Co. v. American Pharmaceutical Co., 270 N.Y. 184, 200 N.E. 779; Playland case, Without going into further minute details it is enough to say that this Court is entirely satisfied that the ......
  • Swanson Mfg. Co. v. Feinberg-Henry Mfg. Co.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 1, 1944
    ...of competitors who desire to poach on that good-will." (page 958 of 137 F.2d) See, also, Smith Co. v. American Pharmaceutical Co., 270 N.Y. 184, 200 N.E. Some of plaintiff's advertising matter copied and used by defendant Feinberg-Henry was copyrighted. Defendant argues that plaintiff's rem......
  • Upjohn Company v. Schwartz, No. 288
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 21, 1957
    ...of the court of equity to prevent an intended fraud from reaching its full fruition. Martin H. Smith Co. v. American Pharmaceutical Co., 270 N.Y. 184, 200 N.E. 779, is a case involving suggested as well as actual substitution of drug preparations. The court there held 270 N.Y. at page 187, ......
  • Request a trial to view additional results
5 cases
  • Swanson Mfg. Co. v. Feinberg-Henry Mfg. Co.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 12, 1943
    ...itself, that is important. Martin, J.'s dissent in Smith Co. v. American Pharmaceutical Co., 244 App. Div. 702, 278 N.Y.S. 834, reversed 270 N. Y. 184, 200 N.E. Where a defendant is shown to have pushed the sale of its product at the expense of the plaintiff through unfair practices, which ......
  • Precision Apparatus Co. v. Precision Meter Co.
    • United States
    • United States State Supreme Court (New York)
    • December 21, 1956
    ...by respondent of that name. Nims, Unfair Competition and Trade Marks (4th Ed.), Vol. 1, sec. 38; Smith Co. v. American Pharmaceutical Co., 270 N.Y. 184, 200 N.E. 779; Playland case, Without going into further minute details it is enough to say that this Court is entirely satisfied that the ......
  • Swanson Mfg. Co. v. Feinberg-Henry Mfg. Co.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 1, 1944
    ...of competitors who desire to poach on that good-will." (page 958 of 137 F.2d) See, also, Smith Co. v. American Pharmaceutical Co., 270 N.Y. 184, 200 N.E. Some of plaintiff's advertising matter copied and used by defendant Feinberg-Henry was copyrighted. Defendant argues that plaintiff's rem......
  • Upjohn Company v. Schwartz, No. 288
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 21, 1957
    ...of the court of equity to prevent an intended fraud from reaching its full fruition. Martin H. Smith Co. v. American Pharmaceutical Co., 270 N.Y. 184, 200 N.E. 779, is a case involving suggested as well as actual substitution of drug preparations. The court there held 270 N.Y. at page 187, ......
  • Request a trial to view additional results

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